Nga Paerangi, Te Awa Tupua, Whanganui

What have we learned since the Te Awa Tupua (The Whanganui River Claims Settlement) Act was recognised in legislation in 2017? The Te Awa Tupua Act sparked global interest and made history. The Whanganui River became the first waterway in the world to receive legal personhood. This groundbreaking decision now allows the river to be represented in court and appoints two guardians to speak on its behalf. Environmentalists and indigenous rights advocates have praised this unprecedented event, recognising it as a significant step toward protecting the river's ecological, cultural and spiritual values.

Just five days after the Whanganui River gained legal personhood, India's Uttarakhand High Court granted the same status for the Ganges and Yamuna Rivers, together with their tributaries. This decision marked the first time a court recognised a non-human entity as a living being in India. However, personhood alone does not automatically improve the rivers' conditions. Despite their legal status, the Ganges and Yamuna continue to face pollution and environmental challenges, but it is a step in the right direction, highlighting the innovative approach taken by New Zealand and its potential influence on other countries.

Ngai Tuhoe Legal Personhood

The idea of legal personhood had been shaped some years earlier by the Ngai Tuhoe people who owned large tracts of mountainous, mystical lands around Lake Waikaremoana and neighbouring kainga in and around the Urewera National Park. Ngai Tuhoe, a fiercely independent people, did not sign the Treaty of Waitangi and had full control of their lands until 1865. But the Crown confiscated their lands nevertheless and much of their productive cultivated lands were given to other tribes.

In a short space of time, Ngai Tuhoe were driven out of Te Urewera, where the Crown used scorched earth tactics, executed unarmed prisoners and forced Ngai Tuhoe to live in abject poverty, under the pretence of seeking revenge for the death of a Crown official in 1865 and the escape of Te Kooti, the prophet of freedom. After a well overdue apology from the Crown, Te Urewera National Park was granted personhood as part of their settlement.

Atrato River, Colombia

In a landmark verdict reached in November 2016, but announced in May 2017, Colombia's Constitutional Court recognised the Atrato River basin as having rights to "protection, conservation, maintenance and restoration". The Court held that State authorities were responsible for violating fundamental rights related to life, health, water, food security, the healthy environment, culture and territory of the local ethnic communities. This decision safeguards the fundamental rights of the communities inhabiting its banks from a perspective called "biocultural rights".

Unique Legal Framework

In March 2017, the New Zealand Parliament enacted the Te Awa Tupua Act which declared the Whanganui River a legal person with fundamental rights. This means that Te Awa Tupua Whanganui River will have its own legal identity with all the corresponding rights, duties and liabilities of a legal person. In addition, the purpose of the Act is "to record the acknowledgments and apology given by the Crown to Whanganui Iwi in Ruruku Whakatupua - Te Mana o Te Iwi o Whanganui" and "recognise, respect and protect the special relationship of the Iwi and Hapu of Whanganui with the Whanganui River".

The Te Awa Tupua Act settled the longest water dispute in New Zealand's history. It established a legal framework, firmly rooted in a Whanganui River Māori worldview. Whanganui iwi have always revered the river as a tupuna (ancestor) and legal personhood reflected their deep spiritual connection to the river, since it is the source of their identity.

The Waitangi Tribunal summarised their position by saying: "rarely has a Māori river claim been so persistently maintained as that of the Whanganui people. Their claim to the authority of the river has continued unabated...". The Te Awa Tupua Act recognised Te Awa Tupua as an indivisible and living whole, encompassing the river from the mountains to the sea, along with all its physical and metaphysical elements. Granting the river legal personhood demonstrated a shift towards recognising the river as a person, a living entity, with its own rights.

A Living Entity

Gerrard Albert, the Lead Negotiator for the Whanganui River, said that "the reason we have taken this approach is because we consider the river an ancestor and always have"; that they (the negotiators) "have fought to find an approximation in law so that all others can understand that from our perspective, treating the river as a living entity is the correct way to approach it, as an indivisible whole, instead of the traditional model for the last 100 years of treating the river from a perspective of ownership and management".

Bystanders And Onlookers

Iwi's first petitions were presented to Parliament in 1873 and 1889, expressing concern about the timber flotation and the destruction of eel weirs by river steamers. Numerous petitions and legal proceedings followed over the next 140 years, pursued through every court in the country regarding ownership of the riverbed and the effects of transportation, harbour works, waste disposal, flood control and tourism. But their concerns fell on deaf ears. Iwi were onlookers and bystanders as the river was altered, in places beyond recognition. One of the most significant of these alterations was the development of the Tongariro Power Scheme, established in the 1960s with no reference to iwi and the subject of litigation ever since. Its resource consent expires in 2039.

Pepeha - Identity And Connection

This lack of respect for the river has had a profound effect on the outlook of many Whanganui iwi. Their sense of loss was referred to by witness after witness in Waitangi Tribunal hearings, which is expressed through their pepeha -

E rere kau mai te Awa nui
Mai I te Kahui Maunga ki Tangaroa
Ko au to Awa ko te Awa ko au.

The great river flows
From the mountain to the sea
I am the river and the river is me.

The river is not merely land or water. It is an integral part of their identity and existence. The recent legislation recognising the river as a legal person, as an elder, a tupuna, continues to resonate through the generations.

In The Beginning Was The River...

At the Waitangi Tribunal's hearings in 1994, Rangatira Matiu Mareikura echoed the "soul" or the deep inner core of the river's being which now forms part of the iwi strategic document called Te Heke Ngahuru. "The river is the beginning, the beginning of our people from the mountain to the sea. It ties us together like the umbilical cord of the unborn child. Without that it dies. Without that strand of life, it has no meaning".

"The river is ultimately our mana, our tapu, our ihi our wehi. All these things make up what the river means to us. It is our life cord, not just because it is water, but because it is sacred water to us. Our people go to the river to cleanse themselves, they go to the river to pray, and they go to the river to wash. They go to the river for everything leads back to the river, and the river in return suffices all our needs".

"Without the river we really would be nothing because of all the resources that it gives back to us; the history that has gone on in the past with our people who have lived on the banks and used it as a motorway, used it as the only thoroughfare. We have been taught to treasure the river for what it is and what it has been given to us for. For we are its caretakers, we have been given the job of taking care of the river".

Significant Agreements

2011 and 2012 were significant years. A record of understanding was signed, setting out -

• an agreed design of legal personhood,
• an agreed version of the history,
• a common aspiration for settlement,
• an agreed design of legal personality is reached called Totohu Whakatupua
• But no transfer of title to iwi, since the river could never be "owned" in an absolute sense.

Bridging The Gap

The legal effect of this declaration is that any person exercising or performing a function under a large number of specified statutes must recognise and provide for, or give particular regard to, the status of the river and the intrinsic values that represent the river. There was some surprise in legal circles that statute would use this kind of language, instead of looking at the river as separate parts, such as riverbed, water column, airspace above the water etc. This was a dramatic shift from legalese. The concept of legal personality was seen as a way of bridging the gap between Māori and the European concept of ownership.

Key Players

Tariana Turia, co-founder of Te Paati Māori, was part of the coalition Government at the time and played a significant role in assisting key Government Ministers, particularly Christopher Finlayson, Minister of Treaty Negotiations, John Key, Prime Minister, and Bill English, Deputy Prime Minister, in pushing legislation through from Cabinet to Parliament.

Research Project - Riverine Rights

In a recent article in the International Journal of Human Rights, called "Beyond Legal Personhood For The Whanganui River: Collaboration And Pluralism In Implementing The Te Awa Tupua Act", by Cribb, Macpherson and Borchgrevink, the authors raised a number of important issues which gives us a more comprehensive and richer understanding of the Act.

In summary, the joint authors emphasise -

• a shift toward a more relational and reciprocal form of governance;
• a shift away from the Western legal fiction of the "person";
• a move towards a broader enabling jurisdiction for kawa or value-based indigenous law;
• relationality and abundance are key values;
• that kawa provides the "potential for a new way of decision-making";
• devolving decision-making to hapu;
• supports place-based authority;
• local democracy being in conversation with the river;
• devolve power and authority to hapu and local communities;
• give weight to the local context rather than focussing mainly on legal personhood;
• sees personhood as a by-product of legislation, designed to, in part, repair the Crown's past wrongdoings;
• the State has the obligation to foster indigenous rights and authority,
• the Te Awa Tupua Act does not remove the potential for future common law claims with respect to territory, water or other sources in the river (see sections 16, 46, 87);
• legal and political claim about the water in the river are open to future challenge;
• legal personhood used as a way of getting around the complicated issue of ownership;
• emphasises jurisdiction for indigenous law.

Te Pa Auroa Na Te Awa Tupua

There is a river governance framework called Te Pa Auroa na Te Awa Tupua (Te Awa Tupua Framework). It has a range of legal entities involving iwi, hapu, Government, community, industry and recreational interests who work under a common set of fundamental values called Tupua te Kawa. These values acknowledge the direct link between the health of the river and the health of the people and give emphasis to a living integrated and holistic river cycle. All groups are encouraged to work collaboratively for the river's health and well-being.

Resource Management Act

The Resource Management Act (RMA) was passed into law in 1991. Its aim was to promote sustainable management of natural and physical resources, including land, air and water. Authors Cribb, Macpherson and Borchgrevink further express serious concerns about the effectiveness of the Resource Management Act with regards to Te Awa Tupua, saying that -

• local authorities that govern water, including water planning and granting water permits, inadequately managed water concerns for Māori;
• do not recognise and provide for the relationship of Māori culture and traditions with ancestral lands, waters, sites, waahi tapu, sacred sites and other taonga treasures which is part of their brief;
• the extent to which they have regard to kaitiakitanga (guardianship) obligations to care, and to take into account the principles of the Treaty of Waitangi, is questionable;
• do not recognise a Māori right to use or govern water or to provide for a Māori water permit or allocation;
• resource consents are often issued with inadequate or no consultation with Māori;
• Māori water relationships, rights and responsibilities are often balanced out of existence alongside other water interests.
• There is no right of veto.

According to the Waitangi Tribunal the Resource Management Act -

• pays superficial attention to Māori concerns;
• fails to deliver partnership outcomes,
• does not realise potential;
• is non-compliant with the Treaty of Waitangi.

In its Report on the National Freshwater and Geothermal Resources Claims (WAI 2358) the Waitangi Tribunal said that the RMA does not -

• provide adequately for tino rangatiratanga (self-determination, political authority, chieftainship) and the kaitiakitanga of iwi and hapu over their freshwater taonga;
• Māori applicants are often seen as anti-development;
• Māori are often treated as just another "stakeholder" similar to being just "another" ethnic minority.

The new coalition Government, led by Prime Minister Christopher Luxon, has announced plans to replace the RMA with three new Acts - the Spatial Planning Act, the Natural and Built Environment Act and the Climate Adaptation Act. Just how well these Acts will serve Māori peoples' interests remains to be seen.

Overseas Critique

Current overseas literature is highly critical of the Whanganui River personhood model because -

• it does not redistribute property rights to the river;
• lacks an adequate understanding of the place of the river within the culture of the Whanganui River people;
• fails to appreciate the historical, political and cultural context in which decades-long planning and decision-making have taken place.

It is difficult to appreciate the complexities of legal personhood that surround the Te Awa Tupua Act but Cribb, Macpherson and Borchgrevink have given us much to think about. Rather than focussing on legal personhood, emphasis should be placed on Māori kawa (indigenous law) and the devolution of authority to iwi and hapu and community as key elements in governance.

Link to the full article.

Watchdog - 166 August 2024